Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. Javier Martínez Torrón, (Universidad Complutense), submitted the following reflection, which we are delighted to publish here:

Introductory note on conceptual issues: public and private education 

I. A frequent confusion 

When the issue of education is addressed in academic circles, in the political discourse, or even in the context of colloquial conversations, it is usual to make an essential distinction between public schools and private schools¹. Often, the dichotomy public and private schools is presented as implying that there is some sort of opposition between those two types of schools, not only with regard to their nature but also the goals and interests they pursue, as if they were different or even diverging.  

The terminology “public and private schools” may be confusing in a way that can affect the approach to the issue of public funding of schools, as well as some other aspects of the basic notions about education and the educational system. For that reason, I think it would be important to clarify some points about the nature of education and the State’s role in it.  

Two ideas — sometimes forgotten — seem particularly significant to me. First, the education offered by the national educational system is always public to some extent; irrespective of which schools provide it, education is a public service that concerns the entire society. Second, the term “public” should not be understood as synonymous with “State owned” or “State managed”; public implies the notion that something should be controlled by society, and society is not equivalent to the State or State authorities. 

For those reasons, it has been often suggested that a more precise terminology would be “schools managed by the State” and “schools managed by private institutions”. In my opinion, thereis no problem in using the usual terminology — public and private schools — provided that we know what we mean by those terms and we do not incur confusion. 

Let us see some of the consequences of the above remarks. 

II. Public funding of private schools: a matter of quality and equality 

Some of those consequences regard private schools. If we conceive education as a public service, the fact that a school is owned or run by a private institution — religious or not — does not give that school carte blanche to do whatever it wants. Private schools do not have an unrestricted right to teach anything, or to choose what not to teach, or to organize the school system and environment. They certainly have the right to their own ethos, and to have that ethos permeating the entire school system and practices; this will necessarily have an impact on issues such as the teaching program and textbooks, as well as the admission of students and the recruitment teachers. But private schools also have a responsibility towards society, and therefore they have accountability. Such responsibility and accountability are in connection with the role of State authorities, which are competent to regulate education and to design the educational system, both for public and private schools. This, however, does not give in turn State authorities a limitless power in the area of education. I will return to this point later. 

From this perspective, it is difficult to understand why there should be any constitutional or legal problem in allocating public funds for the maintenance and functioning of private schools, including those with a religious ethos. They provide the same public service as public schools; they just do it in a different way. The school ownership or management do not change the nature of the service provided. The purpose of public funding is to guarantee that the public service of education is provided with the quality that society expects from it, and that all citizens have equal access to such public service. Again: the notion of public money does not imply that the State is the owner of it; the State is just its administrator, an agent of society.  

Quality and equality should be the main points of reference in this area. Who is the owner or manager of a school should be secondary, or even irrelevant. Except for some extreme political positions, these notions are normally understood in European countries, most of which have a tradition of funding private schools (i.e., schools run by institutions other than the State) with public money, under certain conditions. In the US, the situation is less clear, due to some Supreme Court judgments declaring unconstitutional, as contrary to the establishment clause, the use of public money to support religious schools². Even though the trend in the Supreme Court has gone in the opposite direction for a few years, in some US legal and political circles there is still some belief — as a sort of dogma — in the unconstitutionality of devoting any public money to private schools, especially if they are religious. Such approach, in my view, goes against the rights of parents to decide on the religious and moral orientation of their children’s education, as well as against the principle of equality — why should religious schools be discriminated with regard to other schools (public or private) when they provide the same service and have been freely chosen by parents?  

One of the issues often raised when discussing the public funding of religious schools is that of the State’s religious neutrality — if the State is not supposed to support any particular religion, or even religion in general over non-religion, it should not give money to religious schools, as this would be a way to support religion. However, this argument forgets that the fact that the State itself is religiously neutral does not mean that neutrality has to be a characteristic of each and every institution providing a public service. Religious neutrality is a feature — and a duty — of the State but not of the public service itself, including education. What States must guarantee, as a consequence of their religious neutrality, is that no citizen is prevented from receiving such public service because of his religion or belief, and that no parent is obliged to accept for his children a type of education that is in violation of his religious or philosophical beliefs. 

III. The limited competences of governments on education, especially when values are concerned 

Some other consequences of my two initial statements relate to the conception of the State’s role in education. On the one hand, it is society, not just the State authorities, who is responsible for public schools. Therefore, it is important that, when managing public schools, State authorities act in consultation with the civil society, especially the students’ parents and other members of the school community. 

On the other hand, from a more general perspective, such consultation should be a characteristic of all government’s action in the area of education, once we assume that the State’s role in education is limited. As indicated above, State authorities do not have a limitless power over the educational system. Indeed, this point, in my opinion, has not been sufficiently addressed in international documents, which seem too deferent to the self-understanding that national States have of their role and competences in the realm of education. Thus, for example, the European Convention on Human Rights, when dealing with the right to education and parent’s rights with regard to their children’s education, refers to “any functions” that States assume “in relation to education and to teaching”; there is no indication that no one but the States themselves will define which those functions would be, and therefore the Convention does not provide clear guidance about any possible limitation on the States’ self-definition of their competences³. 

In my view, the conception of the State’s role in education must depart from an essential premise: the aim and raison d’être of the national system of education understood as a public service is to educate citizens — especially the youth — to live in community. This includes a general cultural education, professional education, and education on commonly shared civic values. The purpose of a national system of education should not be instructing about how to be a good person — but just a good citizen — or about what is the meaning of one’s life. Thisfundamental idea, so often forgotten, should be taken into account when designing school curricula for public and private schools, particularly in areas with a stronger moral profile or more ethical implications.  

In other words, governments do not have complete freedom to organize the national education system in whatever way they like or fits better their political or ideological agendas. They must be aware of their limitations, which include parents’ rights. And, even prior to that, governments must assume that their role in planning and implementing the education of youth is limited. It is important to keep this in mind, because it often happens that “enlightened” officials and experts tend to enlarge State’s competences on education, and feel entitled to teach members of society what is best for the education of their children as persons. 

Certainly, the education of youth has to do with values and not only with providing information and helping develop skills. The value side of education is precisely the one that most frequently raises concern in families, for it is closely linked to the realm of morals. In this area, it is legitimate for States — and perhaps necessary — to teach about values that are part ofpublic morals or about commonly shared values. Conversely, States do not have legitimacy to teach about ethical values concerning people’s choices strictly related to their destiny or the meaning of their lives. This is the role of families and, if that is the individual’s choice, religious or belief communities.  

Such limitations on the State’s function vis-à-vis education is in direct connection with its religious neutrality, which in turn is a consequence of the State’s incompetence to make judgments on the truth or falsity of religious and comparable doctrines⁴. The realm of the State is not the truth but the good, and this circumscribed to interpersonal relationships, i.e., to the living together of citizens under its jurisdiction. The State’s religious neutrality is also a relative moral neutrality, which compels governments to refrain from invading the sphere of strictly personal moral choices. This is the reason why teaching programs or courses designed by State officials cannot interfere with personal morals. The only morals that governments are entitled to transmit through the educational system are those embedded in the fundamental international human rights documents, the Constitution, and the legal system, as well as in commonly shared values. Nothing else. 

Such remarks are pertinent when we consider the recent proliferation of new courses in the school curricula of many countries: about sex education, and about citizenship, which often include contents concerning human emotions, affectivity, and moral choices in extremely delicate matters. Many of such courses generate social division and cause strong social reaction, which is a clear sign that the values they teach are not commonly shared⁵. 

IV. The State’s neutrality and how to address morally sensitive issues 

The State’s religious neutrality has also consequences with respect to the way certain morally sensitive issues are addressed at school, such as religion, the beginning and end of human life, sex, or sexual identity. The teaching about such subjects — which is no doubt difficult but is at the same time necessary — has created numerous controversies, and the question they bring up is: are controversies caused by the attitude of stubborn and reactionary parents or rather by invasive educational policies aimed at imposing a particular moral view on students? 

Such type of teaching raises issues not dissimilar from those derived from neutral teaching about religions or beliefs⁶. Teachers in charge of those courses need academic competence and moral integrity, so that sound scholarship goes hand in hand with impartiality and the endeavor not to cross the boundaries that separate legitimate school activity from the sphere reserved to private moral choices. And, as there is always the risk of abuse, a proper school system should have mechanisms of control — ex ante and ex post — that are efficient and agile.  

Both teachers and academic programs must recognize the moral dimension or profile of sensitive topics and be very honest about it. Indeed, ignoring such moral dimension implies a moral positioning, and presenting it as the only valid or objective view would be an unacceptable moral indoctrination of students. For the same reason, it is important to make the appropriatedistinctions. For example, adolescents can learn about the essentials of reproduction and contraception, but they should not be taught that those areas are morally irrelevant. Just the opposite, their moral dimension should be emphasized, noting that each person is entitled to take his own choices or sides, and it is not the school’s function to tell students anything in that regard. Moral choices in the area of sexuality are their problem, and this is something they should discuss with whomever they want, e.g., their families, their friends, or their religious communities. The same applies to sexual orientation or identity: teaching that all people have equal rights and equal dignity irrespective of their sexual identity or orientation does not entail denying that some sexual behaviors may be in conflict with some religious or moral choices. Such conflicts exist, and it does not mean that those religious or moral choices are illegitimate or bad, for the realm of law and personal ethics should not be confused, and we should be careful not to make them equivalent or transplant values from one to the other as if itwere inconsequential.  

Many of the difficulties that arise in the teaching of morally sensitive issues could be solved if the State authorities with competences on education engage in a proper dialoguing and cooperation process with the civil society⁷. The main stakeholders are families, but also religious and belief communities should be considered. Such dialogue requires empathy and a delicate combination of firmness in keeping some basic ethical values that structure society and flexibility to accommodate a diversity of beliefs as much as possible. In other words, holding on to the essential while negotiating everything else, and keeping in mind that sometimes the best is the enemy of the good; i.e., that pursuing the ideal educational system at the expense of ignoring the legitimate choices of families and religious communities is not a sensible policy because it is bound to create social division, and education should generate social harmony. 

This dialoguing process is not necessarily easy; indeed, it is often arduous and time-consuming. But the most valuable things are difficult to achieve. Guaranteeing freedom is complex.Authoritarianism is much simpler, but that fact does not make it better. 

1. There are, of course, further distinctions and terms. And as in some national contexts as the United Kingdom, the term “public school” has a meaning which is different from the one taken into account in this paper. ↩︎
2. See especially Lemon v. Kurtzman, 403 U.S. 602 (1971).. ↩︎
3. This is the text of article 2 of the Protocol to the European Convention: “Right to education. — No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”. ↩︎
4. For a more developed explanation of my ideas in this regard, see J. Martínez-Torrón, “State Neutrality and Religious Plurality in Europe”, in W.C. Durham Jr. & D. Thayer (eds.), Religion, Pluralism, and Reconciling Difference, Routledge, 2018, pp. 159-176.  ↩︎
5. The fact that some teaching causes a strong social reaction in a particular national context is not necessarily a sign that it should be avoided or is not necessary. Sometimes it is just the opposite — think, for instance, of the fight against racism in the US in the 1960’s — but the government will need a solid legal and ethical justification to try to rectify some social tendencies through the education system.  ↩︎
6. See the Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools, OSCE/ODIHR, 2007. ↩︎
7. See ibid.., chapter V, pp. 63 ff. ↩︎

Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality,” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. Ariel J. Liberman (Auburn University) submitted the following reflection, which we are delighted to publish here. 

I. Introduction: ‘Hate’ Despite Inclusive Education Policy 

Recent years have seen great exertions from educational ministries across North America and Europe to emphasize inclusivity in the context of public school.  Expressly designed with an aim of combatting discrimination against religious, national, ethnic, and sexual minorities, legislation on inclusive education has been broad and targeted, and involved systemic redesign as well as substantive curricular reforms.  The project is noble and necessary in theory and in practice; there is an avowedly civic benefit to introducing such educational curricula in nations which prize pluralism and require collective engagement from a diverse citizenry. And yet, despite many visionary efforts, ‘inclusivity’ seems to effectively stop at the theoretical.  For instance, we have seen marked increases in incidents of expressed ‘hate’ on school grounds. As a focal point for this paper, we might direct our concern particularly at the rampant hate speech – or even physical violence – directed against religious minorities (as one example) that are taking a political visage. These incidents present a unique problem: more than just immature religious bullying, they exemplify emboldened student proclivities to ‘other,’ exclude, peers on the basis of identity. Worse, we are seeing these students excused for doing so on grounds of free expression, activism, or national values. Schools, in other words, are permitting the incubation of hate; inclusivity is relegated to theory and curricula, never practiced. 

The rising global tide of antisemitism in education offers an example. Such ‘hate’ against Jews often stems from a perceived political, historical dual-loyalty to their community, or, more contemporarily, connection to the State of Israel. Across the world, the denial of Jewish identity, the expression of antisemitic tropes disguised as political speech, and the marginalization of Jewish voices in educational spaces have become mainstay, legitimated by teachers in classrooms as anti-Zionism.  

Consider one example out of California. By 2022, dozens of states in America had championed ‘inclusive education’ policies, with California having served as a thought-leader championing the advent of mandatory ‘ethnic studies’ curricula across lower schools dedicating to educating students on “marginalized groups” and their contributions to America. The proposal raised expressly that “school curricula must not only provide content knowledge but must also equip students with the tools to promote understanding as community members in a changing democratic society.”  And, yet, by some accounts California boasted the highest percentage increase in antisemitic incidents across K-12 classroom spaces in the country. A great percentage are attributed to the equating of Jews with the entity of Israel at a time when hostilities in that region received international media attention.  More, teachers were supportive, excusing absences and touting their own positions on grounds of protecting democratic engagement and perceived political expression. To them students coalesce as young Americans exercising constitutional freedoms to stand with Palestinians. This is laudable and patriotic, deserving protection despite virulently hateful overtones.  

I seek to raise for discussion the problem of hate in schools – legitimized by teacher and administration in our primary and secondary education either affirmatively or by silence – and disguised as political expression or aligned with advocacy. I try to discuss it as a function of ‘inclusive education’ policy and ask: how can hate, as expressed by children – even in ‘inclusive’ environments– be protected, encouraged, and defended under the color of national values and in spite of ‘inclusive’ educational efforts? Is it a necessary evil to protect other important pillars in education, particularly academic freedom?  

There are a few normative arguments that I hope to raise in taking the above position. First, I argue that there exists a fundamental dissonance between the vision of inclusive education espoused at the highest legislative levels in many nations and the practical realities of implementation of ‘inclusive communities’ at local levels. It is this dissonance that allows ‘hate’ to remain in schools – even ensuring that ‘hate’ thrives. In addressing the issue, I argue in favor of top-level mandates that expand the of principle of ‘inclusive education’ at the primary and secondary level to contemplate ‘teach-not-to-hate’ curricula, representing a larger social and moral imperative to combat expressions of hate which justifies necessary limits on ‘academic freedom’ – or, in the case of K-12 schooling – local implementation and teacher discretion in content instruction.  

II. Teacher Responsibility in Incubating ‘Hate’ in Lower School Contexts 

Teachers are responsible for so much of a child’s identity and values formation. The public-school space uniquely checks lessons learned in the home, church, or community; at school, one learns to be a citizen in a broader sense. Research further affirms the relationship between teachers’ attitudes, self-efficacy, and the ultimate implementation of any top-level education policy.  They are responsible for teaching inclusively and cultivating inclusive environments. And, by extension, I posit they are responsible for excising hate in the classroom. This, I trust, is not too radical a view. 

But what does it really mean to be responsible for inclusivity? There are varied definitions of ‘teacher responsibility,’ and most carry both internal and external dimensions. Internally, to be ‘responsible’ is to believe (or at least buy-in) in the inclusive education project.  Externally, the teacher must be held accountable to it by some measure.  Turning back to the problem of permitting or justifying ‘hate’ in primary and secondary school spaces, we might analyze the phenomenon as a function of teacher responsibility. 

One explanation for administrators permitting ‘hatred’ – as speech, as physical violence, as intimidation – against selected students on the basis of their identity could always be that teachers simply do not really believe in the idea of ‘inclusion,’ or the policy project. But this, I would wager, is not the case.  When it comes to addressing incidents of hate, teachers must objectively respond as trained professionals. Yet, what constitutes ‘hate’ is adjudged by a highly individual measure. Qualitative research supports that “teachers [experience difficulty] distinguishing appropriate speech from hate speech, [or else] will not necessarily recognize subtle forms of hate speech or trivialize the phenomenon.” 

Their own prejudice emboldens them to engage – or, if not engage, then witness without intervening – in the ‘hate.’ In Ontario, Canada, for instance, “nearly 16% of reported incidents of antisemitism involved anti-Israel actions or activities supported or organized by teachers or school administrators.” In 2024, a major rights group in Berlin, Germany assessed the 20% of their caseload involved addressed incidents of Islamophobic expression by educational staff. Put another way, where teachers are the ultimate arbiters of what constitutes hate.   

Additionally, teachers’ own internal impression of what should constitute ‘hate’ is often colored by the endorsed positions of the teachers’ unions and local associations to which they belong.  it is these local associations and unions which often have a principal role in evaluating and engaging teachers, and, from a policy perspective, influencing the implementation of top-level inclusive education policy regimes (environmental and curricular). This thereby impacts the ‘external’ dimensions of the teacher responsibility calculus. In other words, teachers’ unions often provide the lenses by which teachers and administrators judge teachers’ reactions to ‘hate’, and even their determinations as to what is ‘hate.’  

In an American congressional hearing on antisemitism, one witness reported that “teachers’ unions have a significant role in spreading [hateful] ideologies” by encouraging and endorsing the “introduction of antisemitic and anti-Israel content into the classroom.” In California, particularly, one union encouraged teachers’ use of an unapproved ‘Teach Palestine’ curriculum which problematically characterized Zionism, touted Jewish global conspiracy tropes, and related these back to American experiences of settler-colonialism. The union actively combatted legislation aimed at blocking such antisemitic materials in classes required for students’ graduation, and upheld that, as a union, they “have the right to support Hamas as part of its political activism.” 

In these ways, both ‘belief’ in the project of inclusion and the ‘measures’ by which we can assess teachers’ activities have become compromised.  Teachers, in many ways, are preempted from appreciating certain manifestations of ‘hate’ on campus or reacting to it with appropriate severity. Further, they become unable to secure a classroom environment which allows for effective, inclusive engagement with “hate” so long as they engage such curricula which alienate Jewish students.  

This reality impacts the project of a truly inclusive education. I argue therefore that policy regimes which overly defer ‘responsibility’ to teachers, administrators and local boards in executing plans for ‘inclusive education’ projects is not only ineffective in actually assuring against the persistence of ‘hate’ in schools but potentially offers an invitation for fostering this hate. It is the position of this author that ‘responsibility’ in determining curricula in certain areas be subsumed back to higher levels. 

III. Measuring A Social and Moral Imperative in Lower Schools Against Teachers’ Academic Freedom 

What I propose is a top-down legislative mandate for a ‘no-hate curriculum,’ an affirmatively imposed obligation on teachers and local boards – under threat of financial sanction – to vet curricula which may nurture hate and exclusion, combat physical incidents of hate, and promote inclusivity in a broader sense. But is this appropriately contemplated as part of the broader inclusive education project? Let us first focus on one major concern: that such a mandate has repercussions on academic freedom.   

Recently, California has played host to a path-breaking attempt to legislatively combat the rising tide of ‘hate’ in their primary and secondary school spaces.  Assembly Bill 715 (AB 715), the Antisemitism and Civil Rights Bill, was passed by the legislature in September 2025, and signed by the Governor in October 2025.  A brief glimpse of AB 715 draws one’s focus to the bill’s outright prohibition of instructional materials which “would subject a pupil to unlawful discrimination,” expansion upon law that “afford[s] all persons in public schools . . . equal rights and opportunities in the educational institutions of the state,” assurance that teacher instruction be “factually accurate and align with the adopted curriculum,” and setting of broader guideposts which articulate the bounds of “discriminatory bias.” AB 715 represents an attempt at broadly proscribing the contours of ‘inclusive education;’ it is a statement that some ideas ought not be introduced in schools, and that certain principles ought be prioritized. 

I will outline those principles in a moment but first let us consider the chief opposition to AB 715. The California Teachers Association (CTA) offers one scathing rebuke: a failure to honor a full, robust interpretation of teachers’ academic freedom. CTA reads ‘academic freedom’ as meaning “the ability of educators to ensure that instruction includes perspectives and materials that reflect the cultural and ethnic diversity of all of California’s students,” and contemplating “the rights of educators to assist students in developing critical thinking skills by exploring and discussing divergent points of view.” The provisions of AB 715 which delimit instructional materials on the basis of “factual accuracy” introduces a subjective standard which inherently privileges some students’ points of view over others, they argue. Mara Harvey notes that a teacher’s work requires “trust, nuance and open dialogue. [AB 715] undermines a real fight against antisemitism by conflating legitimate political debate with hate speech.” 

Indeed, it is derivative to some extent of the discussions in the higher education sphere in the United States and Europe. Such restrictions, some argue, will simply discourage teachers and students from engaging in controversial discussion on Israel, reading materials, or having their beliefs on the subject challenged.  And, yet, unlike the case for higher education, the case for robust academic freedom at this schooling levels remains unconvincing.   

This position comes down, in many ways, to a question of balancing values.  The educational principles at play are myriad: instillment of factual, descriptive knowledge, prevention of discriminatory conduct, but also moral and civic objectives. Morally, such legislation posits that a priority in early school is to cull that impulse to hate, to teach with a mind toward connecting. Complimentarily, a civic goal is to empower freedom of religion and bolster freedom of expression, though without isolating, vilifying, demeaning fellow citizens.  It is in our civic interests to live harmoniously together, and to educate children toward coexistence.  Further, such initiatives maintain that educating for coexistence, preserving child’s safety and well-being, and fostering connection through learning, ought to be weighed more heavily than other values, like a teacher’s academic freedom. 

AB 715 has its flaws, but it is a guardrail against material and instruction which isolates fellow students.  They promote, implicitly, the value of co-existence citizen-to-citizen. Of course, this does not mean shying away from difficult conversations or engaging controversy in the classroom. Rather, students ought to learn about injustice, protest, resistance alongside values like honesty, respect, empathy, temperance, responsibility, and kindness. When the student is set to engage “sensitive geopolitical issues,” the goal shifts away from galvanizing them toward a position on an issue and toward facilitating conversation and understanding.  

In short, as the identities of future citizens are being forged, certain educational and civic values ought to take prescience over curricular protection. It belies the assumption that children need first be educating in how to navigate conflict as a part of a broader civic ecosystem with diverse citizens, without hate, before being invited to engage in taking sides in a controversial debate. School, ought to be foremost a place of safety; it ought to be a check modulating minds towards harmony as a civic virtue for the sake of peace coexistence in a democracy.  

IV. Conclusion: National Prescriptive Mandates and the Inclusive Education Project 

Taken together, these ideals – the reality of heightened incidents of hate in primary and secondary school spaces, the failures of teacher ‘responsibility’ in effectively ensuring inclusive environments, and a demand that primary and secondary school spaces primarily honor civic values of coexistence– counsel in favor of prescriptive mandates like California’s AB 715. AB 715 is also unique in its effort to allocate resources toward ensuring proper enforcement of this new view on ‘inclusive education’ at a higher level. it is geared to actively fight existing antisemitism on school grounds.  This bill, in particular, establishes a new Office of Civil Rights and funds an Antisemitism Prevention Coordinator. It also requires districts to investigate and take corrective action when discriminatory content is used in education. the power of this prescriptive mandate also lies in returning authority from local teachers and to statewide actors over those ‘external measures’ by which one responds to ‘hate.’ 

But perhaps we must go farther than AB 715 does. More than simply prohibiting certain cirricula (i.e., ensuring a ‘no-hate curriculum), legislative action ought to oblige affirmatively that teachers ‘teach not to hate;’ they ought to channel a clear social, moral and civic imperative to ‘teach not to hate’ in schools.  On this score, Germany’s legislative history on antisemitism offers interesting guidance.  

In 2021, Germany’s Standing Conference of the Ministers of Education and Cultural Affairs issued a joint recommendation which mobilized a clear definition of antisemitism  to provide “orientation for dealing with different forms of antisemitism, describes their effects and highlights prevention and intervention measures.” Directed at “classroom teachers and other educators at schools of all kinds and levels,” the recommendation is distinctive in its discursive tenor – bringing educators into conversation with legislators, rather than projecting a top-down mandate, but moored in a more concrete ideal of a hate-free school. “Open, free and democratic societies based on the rule of law,” the recommendation maintains, are seriously threatened by antisemitism, and indeed any form of hate, and the “schools’ mission [is to] instill maturity and a sense of responsibility in children and young people” to prevent and combat hate. 

The recommendation offers specific guidance on how administrators and teachers effectively combat antisemitism on the ground, prescriptions for fighting ‘hate’ by way of cultivating “civic courage and argumentative strategies” and emphasizing the essentiality of a “respectful and open learning environment.” 

While detractors of this recommendation and other pieces of legislation proffer similar counterarguments previously discussed, the profundity of Germany’s formally articulation hatred’s manifestations and affirmation of a democratic obligation to avoid it, is striking. Is this a model to which legislators should take heed? Or is this too much of an infringement on academic freedom? 

While the extent and definiteness of any prescriptive mandate is open to debate, the broader notion that such a ‘prescriptive mandate’ is needed, is clear, Obvious tensions will arise, but the position more satisfies the ultimate objectives of education for a plural democracy. and principally ensures a more accurate realization of the vision of ‘inclusive education.’ 

Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality,” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. Alessandra Lazzarini (University of Padua) submitted the following reflection, which we are delighted to publish here.

1. Introduction  

The contention over the dismissal of faculty members in U.S. religiously-affiliated universities suggest that the scholarship and the case law on academic and religious freedom do not seem to provide a roadmap to reconcile the claim of academic freedom of professors with the autonomy of religious institutions. Unlike the strong protection of religious freedom offered by the First Amendment, academic freedom is the offspring of the decades-long efforts of the AAUP (American Association of University Professors) and of the ambivalent case law of the Supreme Court of the United States. 

Academic freedom has two dimensions: individual academic freedom, which is the freedom of the individual faculty members; and institutional academic freedom, which is the freedom of the institution to pursue its mission and to be free from outside control. Thus, both the university and its professors possess (at least in theory) academic freedom as well as religious freedom; sometimes these protections overlap or align, but other times they clash. For example, in 2016 Wheaton College dismissed Professor Hawkins because she said publicly “I stand in religious solidarity with Muslims because they […] are people of the Book” and wore a headscarf as a symbol of solidarity. While this statement was perceived by many as inclusive, Wheaton College regarded it as raising significant theological concerns and as inconsistent with, if not contrary to, the institution’s mission and vision. Professor Hawkins and the College later reached an agreement outside of court. 

In this short piece, I consider what happens when such disputes are actually litigated by reflecting on the tensions between the institutional academic freedom through which religious universities preserve their mission and the individual academic freedom of professors in U.S. dismissal cases, with a focus on the so called “ministerial exception” doctrine.  

2. Individual and institutional academic freedom 

The most authoritative and consequential statement on academic freedom in the United States issued by a private institution is the 1940 Statement on Academic Freedom of the AAUP. The Statement does not mention the institutional dimension and reports the three principal aspects of the individual academic freedom of faculty members: “full freedom in research and in the publication of the results,” “freedom in the classroom in discussing their subject,” and freedom from “institutional censorship or discipline» when they «speak or write as citizens.” The 1940 Statement, however, did not require religious institutions to adopt this conception of academic freedom. In fact, the Statement simply reads: “Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.” Hence, the “Limitations Clause” allowed religious colleges and universities to implement autonomous principles and policies, provided that such restrictions were explicitly disclosed in advance.  

However, subsequent attempts by the AAUP to refine this position generated more tensions between individual and institutional academic freedom. In 1970 the AAUP added a footnote to the Limitations Clause of the 1940 Statement: “Most church-related institutions no longer need or desire the departure from the principle of academic freedom implied in the 1940 Statement, and we do not now endorse such a departure.” From this moment on, the distance between the position of the AAUP and the right of religious universities to uphold their faith has been widening. In 1988 a subcommittee of the AAUP stated that “an institution has no ‘right’ under the 1940 Statement simultaneously to invoke the Limitations Clause and to claim that it is an institution of learning to be classed with institutions that impose no such restriction.” Hence, the Limitations Clause works as a switch: universities relying on it lose the status of member of the higher education community. Furthermore, through the decades the AAUP has conducted numerous investigations of religious colleges and universities to ensure respect for the principles of academic freedom, and these institutions continue to be included in the “censure list,” often with no regard for the religious institution’s need to preserve its own identity. In a few words, the AAUP has progressively espoused an “all or nothing” view that sees individual and institutional academic freedom as alternatives. This view has exacerbated political controversies and criticism whenever a professor is dismissed by a religious higher education institution, as the AAUP has constantly sided with the former without advocating any real protection to the latter.  

The Supreme Court first recognized the principle of individual academic freedom during the McCarthy era when it affirmed that it “is a special concern of the First Amendment,” thus providing some protection to communist professors from unjustified dismissal and pressures. The Supreme Court’s decisions in the field have grounded academic freedom in freedom of expression, but they have been more rhetorical than practical, as they did have not provided a clear understanding of what this right actually guarantees to professors. Furthermore, because of the “state action” doctrine, the First Amendment can limit the internal authority of a university only if its administrators can be characterized as exercising state powers. Therefore, only faculty members of state universities enjoy substantial and procedural constitutional rights against their institutions. Since the 60% of higher education institutions in the United States is private and one in five U.S. colleges has ties to a religious organization, the First Amendment’s jurisprudence cannot afford a real protection for faculty members of private institutions, particularly in cases of dismissal from denominational universities.  

The Supreme Court has never pivoted around the concept of individual academic freedom. The Court has instead developed an institutional model of academic freedom. In the Court’s case law, institutional academic freedom guarantees “the exclusion of governmental intervention in the intellectual life of a university” and includes a university’s “four essential freedoms”: ‘to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'” Furthermore, the lower Courts have repeatedly echoed this approach and affirmed that the institutional dimension should prevail and that the individual one has never been endorsed by the Supreme Court: “The Supreme Court […] appears to have recognized only an institutional right of self-governance in academic affairs. […] It was not focusing on the individual rights of teachers.” Thus, the existing jurisprudence on academic freedom offers no meaningful protection in cases of dismissal, especially since it does not shield even faculty members at public universities. In order to warrant some protection to academics, the lower Courts have begun to apply the Supreme Court’s jurisprudence on the free speech rights on the workplace of public employees, with ambivalent results.  

3. The ministerial exception  

For the First Amendment, religious organizations, including those of higher education, must be free to pursue their mission. Put differently, through its Free Exercise and Establishment Clauses, the First Amendment guarantees the institutional academic freedom of religious colleges and universities. Yet, the very mechanism that protect this autonomy, i.e. the ministerial exception, overrides the individual academic freedom of professors. Furthermore, this legal doctrine was primarily developed by the Supreme Court in the context of K-12 education, where individual academic freedom is not a recognized value.  

The ministerial exception bars an individual from suing for employment-related discrimination if a religious institution employs the individual and deems him or her to be a “minister.” In 2012, the Supreme Court in Hosanna-Tabor Lutheran Church and School v. EEOC recognized for the first time the exception grounding it on both the Establishment and the Free Exercise Clauses. Eight years later, the Court reaffirmed and reinforced its approach in Our Lady of Guadalupe School v. Morrissey-Berru. Both cases concerned teachers dismissed by a religious elementary school and the central legal question was when the teacher could be considered a “minister.” In Hosanna-Tabor the Court did not adopt a “rigid formula” in order to decide if the plaintiff (whom the school considered as a ‘called’ teacher) was a minister. However, it took into account four factors: “(1) she had the title of “minister,” (2) her position had a significant degree of religious training, (3) she held herself out as a minister, and (4) her duties reflected the Church’s message.” The Court stated that because of her status of called teacher, she should be considered a minister and that «by imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According to the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions».  

In Our Lady of Guadalupe the Court reasoned that, while they did not have the title of “minister,” the teachers still served as ministers for purposes of the ministerial exception because they carried out certain teaching responsibilities that were within the scope of a “minister” and analogous to those employed by the teacher in Hosanna-Tabor. Furthermore, the Court stressed that “What matters is what an employee does. Implicit in the Hosanna-Tabor decision was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of a private religious school’s mission.”  

In the years following Hosanna-Tabor and Our Lady of Guadalupe, lower courts have applied these decisions in numerous dismissal cases involving professors and their religious universities (see some examples here, here, and here). However, the outcomes have been quite divergent, highlighting the difficulty of applying jurisprudence originally developed for the K–12 education system to the context of higher education and the resulting discretion left to the courts. Amid this uncertainty, in 2022 the Supreme Court denied certiorari in Gordon College v. DeWeese-Boyd, a case litigated in the Massachusetts state courts which involved an affiliated religious higher education institution and its professor, who had been denied promotion to full professor. The Massachusetts Supreme Judicial Court stressed that the U.S. Supreme Court in Hosanna-Tabor and Our Lady of Guadalupe adopted a “functional analysis” for determining whether an employee is a minister within the meaning of the exception. And it stated that DeWeese-Boyd “was, first and foremost, a professor of social work. She taught classes on sustainability and general social work practice and oversaw practicums.”  Furthermore, unlike the Hosanna-Tabor and Our Lady of Guadalupe cases, DeWeese-Boyd had no obligation to engage in specifically religious duties. Finally, the Court noted that “a faculty member with DeWeese Boyd’s responsibilities at Gordon is significantly different from the ordained ministers or teachers of religion at primary or secondary schools in the cases that have come before the Supreme Court” and it concluded that “the significant expansion of the ministerial exception doctrine requested by Gordon is not dictated nor, do we believe, directed by existing Supreme Court precedent. It is our understanding that the ministerial exception has been carefully circumscribed to avoid any unnecessary conflict with civil law.”  

In 2022, the Supreme Court denied certiorari to the aforementioned ruling and, in a statement “Respecting the denial of certiorari”, Justice Alito, joined by Justices Thomas, Kavanaugh, and Barrett, commented on the merits of the case. In this statement the Court described as “troubling and narrow” the vision of religious education developed by the Massachusetts JSC. Furthermore, in the Court’s arguments there is an evident shift from a focus on the minister’s figure to the “autonomy” of the religious institution in defining the content and method of its religious instruction. Quoting Our Lady of Guadalupe the Court stated: “The Religion Clauses of the First Amendment sometimes forbid courts to intervene in employment disputes involving teachers at religious schools who are entrusted with the responsibility of instructing their students in the faith.'” Thus, the Court’s criterion consists in the total deference to the higher education institution.  

4. Conclusions 

The individual academic freedom of professors emerges as an important value in legal scholarship but lacks support in the First Amendment’s jurisprudence. Conversely, the Supreme Court has repeatedly recognized the institutional academic and religious freedom of religious institutions. The AAUP’s emphasis on the individual freedom of faculty members overlooks the institutional perspective, while the ministerial exception’s jurisprudence does not consider the specificities of institutions of higher education. Indeed, if the Court’s reasoning prevails, faculty members at religious institutions would be left without meaningful legal protections. As employees of private institutions, they would not benefit even from the already weak guarantees of academic freedom. Nor could they seek protection under anti-discrimination laws, since the university has unilaterally classified them as “ministers”.  

Two significant steps seems to be available to safeguard both individual academic freedom and the institution’s confessional identity. First, the AAUP may reconsider their position and appreciate that the institutional dimension of academic freedom is an essential feature of the First Amendment. Second, courts could diversify the K-12 education system from the higher education context in their decisions. Indeed, college students are no lo longer children. They have the possibility to choose which university to enroll in, and even whether to attend university in the first place. Furthermore, mature students should be engaged in critical thinking. The Supreme Court has long acknowledged these positions in its broader academic freedom jurisprudence (for example here, here, and here); applying them to the dismissal cases in denominational universities could fundamentally transform how courts evaluate the rights of university faculty.